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State v. Ross

Supreme Court of South Carolina

June 13, 2018

The State, Respondent,
v.
David Wilkins Ross, Appellant. Appellate Case No. 2016-000738

          Heard March 6, 2018

          Appeal from Greenville County Robin B. Stilwell, Circuit Court Judge

          Appellate Defender LaNelle Cantey DuRant, of Columbia, for Appellant.

          Matthew C. Buchanan, South Carolina Department of Probation, Parole and Pardon Services, of Columbia, for Respondent.

          FEW, JUSTICE

         David Wilkins Ross pled guilty in 1979 to lewd act upon a child. Thirty-two years later, he was convicted in magistrate's court of misdemeanor failure to register as a sex offender. Ross argues the automatic imposition of lifetime electronic monitoring required by subsection 23-3-540(E) of the South Carolina Code (Supp. 2017) as a result of his failure to register is an unreasonable search under the Fourth Amendment. Addressing only this particular subsection of 23-3-540, we agree. We reverse the circuit court's order automatically imposing electronic monitoring, and remand for an individualized inquiry into whether the imposition of monitoring in Ross's circumstances is reasonable under the Fourth Amendment.

         I. Facts and Procedural History

         When Ross pled guilty to lewd act upon a child in 1979, the trial court-the late Honorable Frank Eppes-sentenced Ross to six years in prison, but suspended all of the active prison time upon Ross's successful service of five years of probation. Less than two years later, Judge Eppes revoked Ross's probation for being convicted of alcohol-related offenses in municipal court. His conviction for lewd act-which is now reclassified as criminal sexual conduct (CSC) with a minor in the third degree[1]-is the only sexual offense of which Ross has been convicted.

         In 1994, our General Assembly enacted the Sex Offender Registry Act. See S.C. Code Ann. §§ 23-3-400 to -555 (2007 & Supp. 2017). Subsection 23-3-430(A) (2007) provides, "Any person, regardless of age, residing in the State of South Carolina who in this State . . . pled guilty . . . to an offense described below, . . . shall be required to register" as a sex offender. Subsection 23-3-430(C)(6) includes "criminal sexual conduct with minors, third degree" as an offense requiring registration. "A person required to register pursuant to this article is required to register biannually for life." § 23-3-460(A) (Supp. 2017).

         Ross was convicted in 2011 in magistrate court for failing to register. See § 23-3-470(A) (Supp. 2017) ("If an offender fails to register . . ., he must be punished as provided in subsection (B)."); § 23-3-470(B)(1) ("A person convicted for a first offense is guilty of a misdemeanor . . . ."). The details of Ross's failure to comply with subsection 23-3-470(A) are not in the record.

         Under subsection 23-3-540(E), the automatic, mandatory consequence of Ross's failure to register is lifetime electronic monitoring. In particular, subsection 23-3-540(E) provides,

A person who is required to register pursuant to this article for committing . . . criminal sexual conduct with a minor in the third degree, . . . and who violates a provision of this article, must be ordered by the court to be monitored by the Department of Probation, Parole and Pardon Services with an active electronic monitoring device.

         To enforce this requirement, the Department brought an action in circuit court seeking an order to place Ross on electronic monitoring. At the hearing before the circuit court, Ross argued automatic, mandatory electronic monitoring pursuant to subsection 23-3-540(E) is an unconstitutional search under the Fourth Amendment. Ross argued the "must be ordered" language in subsection 23-3-540(E) prohibits the court from considering his unique circumstances, which in turn renders the required electronic monitoring unreasonable. See Samson v. California, 547 U.S. 843, 848, 126 S.Ct. 2193, 2197, 165 L.Ed.2d 250, 256 (2006) (stating the Fourth Amendment requires courts to "'examin[e] the totality of the circumstances' to determine whether a search is reasonable" (alteration in original) (quoting United States v. Knights, 534 U.S. 112, 118, 122 S.Ct. 587, 591, 151 L.Ed.2d 497, 505 (2001))). To support his argument, Ross presented expert testimony from Dr. William Burke, whom the circuit court qualified as an expert in "psychosexual evaluation and treatment." Dr. Burke testified he evaluated Ross and determined he is in the "lowest category of risk" of reoffending.

         The circuit court disagreed with Ross and found that an order placing Ross on electronic monitoring was automatic and mandatory under subsection 23-3-540(E). Ross appealed to the court of appeals. We certified the case for our review ...


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